Speaking of Ethics: Government Lawyers and Rule 1.11

From Washington Lawyer, November 2005

By Ernest T. Lindberg

Because there are probably more lawyers who are, have been, or will be engaged as government lawyers in Washington, D.C., than in any other jurisdiction, it is not unusual that the rule of professional conduct applying to them, Rule 1.11 (successive government and private employment) of the D.C. Rules of Professional Conduct, is more extensive than the rules of other jurisdictions and significantly different from American Bar Association Model Rule 1.11.

Rule 1.9 (conflict of interest: former client) at comment 3 provides, “The question of whether a lawyer is personally disqualified from representation in any matter on account of successive government and private employment is governed by Rule 1.11 rather than by Rule 1.9.” Rule 1.10 (imputed disqualification) at comment 1 notes that for purposes of this rule the term firm does not include a government agency or other government entity, and at comment 5 notes there are different provisions made “for movement of a lawyer from one private firm to another and for movement of a lawyer from the government to a private firm.”

The protections afforded the government are provided in Rules 1.6 and 1.11 because if the “more extensive disqualification in Rule 1.10 were applied to former government lawyers, the potential effect on the government would be unduly burdensome.” Recognizing the unique circumstances of the need for lawyers during peak periods, Rule 1.10 at comment 22 specifies that lawyers assisting portions of the D.C. government are treated “as if they were employed as government employees and as if their affiliation with a private firm did not exist during the period of temporary service. . . .” See D.C. Rules of Prof’l Conduct R. 1.11(h); D.C. Ethics Op. 268 (1996).

Rule 1.11(a) provides:

A lawyer shall not accept other employment in connection with a matter which is the same as, or substantially related to, a matter in which the lawyer participated personally and substantially as a public officer or employee. Such participation includes acting on the merits of a matter in a judicial or other adjudicative capacity.

This language is significantly different from that of the model rule, which precludes the former government lawyer from representing a private client in a matter in which the lawyer participated personally and substantially while in government. The D.C. rule is much broader, as reflected in comment 10, which says that “other employment” includes employment by an agency “of the governmental body other than an agency of the government by which the lawyer was employed as a public officer or employee. . . .” This prohibition may be waived by the former employing agency, and the comment permits taking employment “with another government agency (e.g., the Department of Justice) or with a private law firm to continue or accept representation of the same government agency with which the lawyer was previously employed.”

A second significant difference is that the D.C. rule proscribes representation in a “substantially related matter.” The leading case in defining substantially related matter is Brown v. District of Columbia Board of Zoning Adjustment, 486 A.2d 37 (D.C. 1984) (en banc). See also In re Sofaer, 728 A.2d 625 (D.C. 1999).

The D.C. Bar Legal Ethics Committee in Opinion 315 (2002) addressed how D.C. Rule 1.11 applied to a former lawyer with the Environmental Protection Agency (EPA) who had been involved in drafting status reports for the court of appeals in a proceeding challenging the EPA’s rules and asked the committee whether he could represent a client in future litigation challenging these same rules. Although the committee determined this was a “very close question,” it concluded that the former EPA lawyer’s involvement in the case was not direct, extensive, and substantive, but rather peripheral, clerical, and formal. The committee specifically recognized that whether a former government lawyer’s involvement in a matter was “substantial” turns on what the lawyer actually did or knew rather than on the scope of the lawyer’s prior employment. Because the committee concluded that the former EPA lawyer’s participation in drafting status reports did not involve him in the merits of the case, his role in the prior litigation was not substantial. See also D.C. Ethics Op. 297 (2000) (former government attorney was not prohibited from representing a private client in a “negotiated rulemaking” in which he participated while employed by the government).

The differences between Model Rule 1.11 and D.C. Rule 1.11 are not the only considerations. The differences between the provisions of the Ethics in Government Act at 18 U.S.C. § 207 and D.C. Rule 1.11 must also be addressed. Opinion 313 (2002) identifies some of these differences. In that opinion the committee determined that a military lawyer, as a civilian, could continue to represent the same client in the same matter while serving as a public officer or employee.

Useful also in recognizing the unique circumstances affecting those in government service is Opinion 308 (2001), which addresses the ethical considerations of lawyers leaving private practice for government service. This opinion examines issues that arise from the need to maintain confidences of former clients and conflicts that may arise from that earlier representation.

In addition, the government lawyer should note Opinion 323 (2004), which identifies the unique issue of when a lawyer for the government may engage in misrepresentation if it is part of the lawyer’s official duties.

Legal ethics counsel Ernest T. Lindberg and Heather Bupp-Habuda are available for telephone inquiries at 202-737-4700, ext. 231 or 232, or by e-mail at ethics@dcbar.org.